Guatemalan Congress Leads Attack on Rule of Law over Amnesty Bill

On July 18, 2019, the Guatemala Constitutional Court granted a provisional injunction that suspended congressional deliberation of Legislative Proposal 5377. Victims of Guatemalan’s 36-year internal armed conflict sought the injunction of the law, which would have imposed a blanket amnesty for war crimes.

In response, several members of the Permanent Commission of the Guatemalan Congress filed a legal motion with the Supreme Court of Justice seeking the impeachment of three magistrates of the Constitutional Court: Boanerge Mejía, Gloria Porres, and José Mata. These magistrates voted in favor of the temporary injunction.

The congressional leaders charged the three magistrates with “violation of the constitution, resolutions violating the constitution, prevarication, abuse of authority and usurpation of powers” and claimed that the magistrates are preventing them from carrying out their work as legislators.

On Friday, the daily La Hora reported that the three Constitutional Court magistrates filed a petition calling on the Supreme Court of Justice to reject in limine the motion to impeach them filed by the Permanent Commission of the Guatemalan Congress. The magistrates noted that Article 167 of the Injunction Law establishes that Constitutional Court magistrates cannot be criminally charged or penalized because of their rulings.

The Constitutional Court magistrates earlier stated that the impeachment motion “is illegal and illegitimate, and constitutes attack on judicial independence, which is necessary to exercise our mandate as magistrates of the Constitutional Court.” They noted further that the Court has granted provisional injunctions to prevent unconstitutional laws that put at risk fundamental citizen rights from being approved, as well as rulings that protect magistrates who have been persecuted from emitting opinions in the exercise of their functions.

Congress Seeks to Limit Constitutional Court’s Oversight Role

The congressional impeachment effort against the three magistrates of the highest court in Guatemala is widely seen as an attack on the rule of law. The role of the Constitutional Court is to ensure that legislation is in line with the Guatemalan Constitution as part of the democratic system of checks and balances.

However, some members of the Guatemalan Congress think otherwise. Fernando Beltranena Linares, a member of Congress who is closely aligned to the old guard military, introduced the amnesty bill in 2017. He asserted that the Constitutional Court’s decision on the legislation interfered with Congress’s mandate to legislate: “We do not tell them how to deliver their rulings, but they are telling us how to legislate, because the three magistrates have a clear phobia of the military.”

Among the most ardent supporters of bill 5377 is Congressman Estuardo Galdámez, a former Kaibil soldier, whose father-in-law, retired General Luis Enrique García Méndoza, was recently captured by authorities and charged with genocide and crimes against humanity against the Maya Ixil between 1982 and 1983. García Mendoza was the Chief of Military Operations during the government of Efraín Ríos Montt. In September 2018, a court determined that the Guatemalan army committed genocide against the Maya Ixil population.

Guatemala held congressional elections in June 2019, but the new members will not be sworn in until January 2020. Human rights activists told International Justice Monitor that they fear that the existing Congress, particularly members such as Galdámez who have not been re-elected, will take advantage of this long lame-duck period to impose bill 5377 and other regressive legislation, including a bill that would severely restrict NGO activity.

The Constitutional Court has come under fire numerous times during the administration of President Jimmy Morales. Morales’ government has frequently defied the high court’s resolutions, including its determination in September 2018 that it was unconstitutional to prohibit the return of the commissioner of the International Commission against Impunity in Guatemala (CICIG), Iván Velásquez; that it was unconstitutional to purchase military planes from Argentina; and, most recently, that it was unconstitutional to sign a “safe third country” agreement with the United States without proper consultation with Congress, which the Morales government signed anyway.

In the face of almost daily attacks against the Constitutional Court magistrates on the part of members of the so-called “pact of the corrupt,” various media outlets, political analysts, victims’ organizations, and international organizations have spoken out in their defense.

The daily La Hora published an editorial saying that the attacks by the Morales’ government against the Constitutional Court undermine the rule of law in Guatemala. International organizations outlined their concerns about the constant harassment suffered by the Constitutional Court, calling on President Morales and the Congress to uphold the constitutional order and to respect the international agreements on human rights of which Guatemala is a party.

Likewise, survivor organizations in Guatemala and in exile, accompanied by civil society organizations, issued a statement of support of the three magistrates and rejected the impeachment efforts against the magistrates.

Reason for Concern: Recent Supreme Court of Justice Decisions

There is reason to be concerned about the efforts to impeach the Constitutional Court magistrates. The Supreme Court of Justice, which will rule on the motion to impeach, has handed down a series of rulings that are favorable to those seeking to impose regressive laws, including the blanket amnesty.

For example, on July 31, the Supreme Court of Justice rejected a series of motions to impeach Judge Claudette Domínguez. Judge Domínguez has come under intense questioning for a series of decisions she has made as pretrial judge of High Risk Court “A.” Victims in the Maya Achí sexual violence case sought her recusal after her decision to dismiss the charges against six ex civil defense patrollers arrested last year. The Attorney General’s Office sought her impeachment, accusing her of breach of duty and obstructing the rights of victims to access justice for failing to consider the victims’ testimony in making her decision

Also on July 31, the Supreme Court of Justice reduced the sentence of former Congressman Gudy Rivera from 13 years, four months to eight years, 11 months. Rivera was convicted of influence peddling and subornation for attempting to bribe appellate judge Claudia Escobar to exonerate former vice president Roxana Baldetti. Baldetti has since been convicted and sentenced to 15 years in prison for fraud, influence peddling, and illicit association related to a bogus plan to clean up a polluted lake, in the first of several cases she faces.

The Supreme Court of Justice also recently rejected a motion filed by Acción Ciudadana to impeach President Morales and his minister of defense, Luis Miguel Ralda, for the anomalous purchase of two military aircraft from Argentina, as well as one filed by the Attorney General’s Office against Finance Minister Víctor Manuel Martinez Ruiz, who was accused of making illicit campaign contributions to the Unionist party of Alvaro Arzú, the outgoing president of Congress. The Supreme Court determined that the impeachment motions were spurious.

Note: In an earlier version of this article, it was reported the Supreme Court of Justice was to decide on the motion to impeach the magistrates Friday, August 2. It is unclear when the court will decide on the motion.

Jo-Marie Burt is an Associate Professor of Political Science and Latin American Studies at George Mason University. She is also a Senior Fellow at the Washington Office on Latin America (WOLA). Paulo Estrada is a human rights activist, archaeology student at San Carlos University, and civil party in the Military Diary case.